Dallas-Fort Worth Brewing Co.

In the Matter of DALLAS-FORT WORTH BREWING COMPANY, EMPLOYER and STATIONARY ENGINEERS, LOCAL No. 707, INTERNATIONAL UNION OF OPERATING ENGINEERS , AFL, PETITIONER Case No. 16-RC-370.-Decided June 28,1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before James P. Wolf, hearing officer of the National Labor Relations Board. At the hear- ing, Brewery Workers Local Union No. 157, International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, CIO, herein called the Intervenor, moved to dismiss the petition on the ground that an existing collective bargaining contract is a bar to this proceeding. For reasons stated below, the motion is hereby denied. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Cifairman Herzog and Members Reynolds and Gray]. Upon the entire record in this case, the Board finds : 1. The business of the Employer : The Employer is a Texas corporation engaged in the brewing, dis- tribution, and sale of malt beer at Dallas, Texas. During the past 12 months, the Employer purchased raw materials, such as malt, corn, bottles, bottle caps, labels, cans, and cases valued at approximately $500,000, of which two-thirds were shipped to the Dallas plant from points outside the State of Texas. During the same period, the Em- ployer's sales amounted to approximately $1,000,000, all of which were made within the State. We find that the Employer is engaged in commerce within the mean- ing of the Act.' 1Matter of The Consumers Brewing Company, 77 N. L. R B. 1244; Matter of Tampa -Florida Brewery, Inc., 42 N L. R. B. 642; Matter of Mutual Dtstrlbutting Company, 81 N. L. R. B 208. 84 N. L. R. B, No. 82. 681 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Petitioner and the Intervenor are labor organizations claim- ing to represent employees of the Employer. 3. The question concerning representation : The Intervenor asserts that a collective bargaining contract signed- with the Employer on March 24, 1948, is a bar to this proceeding. This contract is for a 1-year term, from June 1, 1948, to June 1, 1949,. subject to automatic renewal for yearly terms thereafter, unless at least 60 days before any anniversary date either party serves written notice upon the other of a desire to terminate or modify the contract. Neither contracting party served the notice referred to in the re- newal clause. However, on March 30, 1949, before the "Mill B" 2 or operative date of the automatic renewal clause, the Petitioner noti- fied the Employer of its claim of representation, and within 10 days thereafter filed the present petition with the Board. Under such cir- cumstances, we find that the 1948 contract is not a bar to the present proceeding.3 According, we find that a question affecting commerce exists con- cerning the representation of employees of the Employer within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 4. The appropriate unit : The Petitioner seeks to sever from the existing plant-wide unit of employees now represented by the Intervenor, all engineers 4 operat- ing and maintaining boilers, engines, pumps, compressors and re- frigeration equipment. The Intervenor contends that this unit is inappropriate and that only,a plant-wide unit is appropriate. The Employer maintains a neutral position. The Employer's operations are divided among 4 main depart- ments : brewing, bottling, delivery, and engineering. Of approx- imately 75 production and maintenance employees, 5 are engineers and comprise the engineering department. It is these engineering department employees whom the Petitioner desires to sever from the existing plant-wide unit. The engineers work under the supervision of, and are responsible only to, the assistant brew master and plant superintendent. They spend the majority of their time operating and maintaining the equipment in the engine and boiler rooms. They also check and main- tain temperatures throughout the plant. As an incidental part of 2 Matter of Mill B, Inc., 40 N L R. B 346. 8 Matter of General Electric X-Ray, 67 N. L. R B. 997. 4 The Petitioner also seeks to represent helpers and apprentices. The record shows that there are no such employees DALLAS-FORT WORTH BREWING COMPANY 683 their work, the engineers may also be called upon to perform general maintenance work. They generally perform no production work and do not interchange with production employees .15 Although only the chief engineer is licensed, all engineers must be trained and ex- perienced men. In fact, they are the highest paid employees in the plant. It is apparent that the engineering department employees constitute a functionally cohesive and homogeneous group of a type which the Board has frequently recognized may constitute a separate unit despite a history of collective bargaining on a plant-wide basis .6 Accordingly, we shall direct an election among the employees in the following voting group : All engineers 7 at the Employer's Dallas, Texas, brewery, engaged in operating and maintaining boilers, engines, pumps, compressors and refrigerating equipment, excluding guards, professional employ- ees and supervisors as defined in the Act. However, we shall make no final unit determination at this time, but shall be guided in part by the desires of these employees as expressed in the election hereinafter directed. If a majority vote for the Peti- tioner, they will be taken to have indicated their desire to constitute a separate appropriate unit. DIRECTION OF ELECTION 8 As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with the Employer, an election by secret ballot shall be conducted as early as possible, but not later than 30 days' from the date of this Direction, under the direction and super- vision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, as amended, among the employees described in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work 6 Except that the night engineer assists the kettle man to drop the grain in the mash tub, an operation requiring only 10 or 15 minutes each night. During rush periods , the engi- neers occasionally may also be called upon to help in other departments. 6Matter of The Consumers Brewing Company, supra; Matter of Tampa Florida Brewery Inc, supra; Matter of Southern Breading Company, 42 N L. R B 649; Matter of Baugh and Sons, 82 N L R B 1399; Matter of Bloomingdale Brothers, Inc, 81 N. L R B 1252 , Matter of Worthy Paper Company Association, 80 N L. R. B 19. ' This includes the chief engineer who is a working foreman and does not have the au- thority of a supervisor within the Act's definition. 8 Any participant in the election directed herein may , upon its prompt request to, and approval thereof by, the Regional Director, have its name removed from the ballot. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during said pay-roll period because they were ill or on vacation or tem- porarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election , and also excluding employees on strike who are not entitled to reinstatement, to determine whether they desire to be represented , for purposes of collective bargaining , by Sta- tionary Engineers, Local #707, International Union of Operating Engineers, AFL, or by Brewery Workers Local Union No. 157, In- ternational Union of United Brewery, Flour , Cereal, Soft Drink and Distillery Workers of America, CIO, or by neither.